Justice or injustice?

'Dateline' video looks at that fine distinction, plus UC College of Law efforts to get a woman exonerated and to keep her free.

On April 8, 2012, the NBC news show “Dateline” featured a UC connection in its episode titled “Haunted Memories,” dealing with the probability that an innocent person spent 15 years in jail for crimes she did not commit. (Watch the entire 40 minutes below in six video segments.)

The show focused on how Nancy Smith was convicted, then exonerated, and now faces the risk of being sent back to jail due to an Ohio Supreme Court ruling on a technicality. The Ohio Innocence Project, run by UC law students and faculty, was featured for its work helping to get her exonerated and its current efforts to keep her free.

In 1994, Smith, a Head Start bus driver in Loraine, Ohio, was convicted of child molestation, along with Joseph Allen, a man she said she had never met before the trial. Parents of four Head Start pre-schoolers claimed that Smith took their children to Allen’s house where sexual abuse occurred numerous times. Both defendants spent 15 years in prison before someone looked further.

In early 2009, the case went to a new judge for re-sentencing because Smith’s attorney found a clerical error in the sentencing order. Before making a decision, Court of Common Pleas Judge James Burge reviewed trial transcripts, as well as medical records and pretrial interviews that were never presented in court.

On the Dateline episode, he explained, “I wanted to put my own imprimatur on the sentence and not simply re-impose what had been done.”

Dateline revealed that critical witnesses had not been called to testify, medical records did not substantiate defendant claims, Head Start records never matched absences by Nancy or the children on specified dates, and videos of police lineups show young, alleged victims repeatedly unable to identify a single perpetrator. That evidence never came before the jury.

After Judge Burge completed his research, he said that he only had one option: “It wasn’t that I had a hunch they were innocent; I knew it. And once I reviewed the file and I knew that, I was going to acquit them. It was that simple.

“I took a set of facts. I applied real world experience and the law. And I know these people are innocent. If I were to overlook that, I would never get over it.”

Ohio Innocence Project had worked on that exoneration. OIP faculty and students say that Smith’s conviction was based upon the testimony of very young children who had been coached by their parents and that the children’s stories both contradicted each other and contained inaccuracies. In the end, the children's parents received multi-million dollar judgments in a civil case that was later settled out of court.

When Dateline interviewed OIP director Mark Godsey, College of Law professor, he stated, “It was bizarre the charges were brought in the first place, once you started looking at how the stories of the children changed constantly.”

In fact, a grown William Oliver, one of the named victims, admitted, “I don’t remember anything happening to me.”

But in January 2011, the Ohio Supreme Court reinstated the original conviction, ruling that Judge Burge lacked the authority to hold a new sentencing entry and issue an acquittal. That decision revolved around a technicality that the court had to address because the error could affect the outcome in other trials, Godsey explains.

After the reversal last year, Judge Burge told Loraine County’s Chronicle Telegram newspaper, “I never thought I would witness anything quite so tragic in the criminal justice system, much less be any part of it.”

On April 6, 2012, the OIP filed a petition with Gov. John Kasich asking him for clemency because the Supreme Court had not overturned the finding that she was not guilty. No action has been taken on the clemency request, and Smith and Allen remain free at present.

The Dateline episode ran two days later. Besides filming professor Godsey, the Dateline crew shot footage of the law school, the OIP offices and two law students, Lauren Staley and Katie Barrett, working on the case and discussing it with Godsey.

In a few weeks, Smith and Godsey will fly to New York City where Smith will appear on Anderson Cooper's new daytime show with a studio audience.

Godsey is also the Daniel and Judith Carmichael Professor of Law, and the Ohio Innocence Project is part of the college’s Rosenthal Institute for Justice.
(Note: The OIP is featured in parts 4 and 6 of these videos.)